Opinion
December 15, 1911.
B. Gerson Oppenheim, for the appellant.
Melville H. Cane, for the respondent.
Plaintiff appeals from an order denying her motion to vacate an ex parte order extending the time of defendant American Play Company to answer the complaint. The said defendant demurred to the complaint. On plaintiff's motion the demurrer was overruled, leave being given to said defendant to withdraw its demurrer and answer within ten days. Before the ten days had expired defendant appealed to the Appellate Division and applied for and obtained an ex parte order extending its time to answer "to and including ten (10) days after the determination by the Appellate Division, First Department, of the appeal" from the order overruling the demurrer. It was this order which plaintiff seeks to vacate. In our opinion the motion to vacate should have been granted. The order overruling the demurrer, under the practice now authorized and adopted in the present case, stands in the place of and is to be treated as an interlocutory judgment, which determines the issue of law raised by the pleading and the demurrer. It is an adjudication and in effect a judgment leaving to the defeated party the option of adopting one of two courses. He may stand on his demurrer and appeal from the order overruling it or may withdraw the demurrer and plead over, but one or the other he must do. An order such as defendant obtained operates in one point of view as an amendment of the order overruling the demurrer, and in another point of view as a stay of proceedings under that order pending an appeal. It can be sustained in neither view. In either the opposite party was entitled to notice. And even if she had had notice the order would have been improper. An indefinite extension of time to answer over would have been unauthorized even if embodied originally in the order overruling the demurrer. The proper course for a demurrant to pursue who wishes to appeal from the order vacating his demurrer is to refuse to plead over, and after having appealed, to apply upon notice for a stay of further proceedings pending appeal, whereupon the court, if it considers that the motion should be granted, will fix such terms and conditions as the Code prescribes and as seem reasonable.
It is true that by following this course the demurrant loses the option to plead over given by the original order, but this is the necessary result of his refusal to avail himself of the option, and he runs little risk in doing so, because the cases are rare in which an appellate court, even if it affirms the order overruling the demurrer, does not grant leave to plead over upon proper terms.
The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.
INGRAHAM, P.J., LAUGHLIN, CLARKE and MILLER, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.